A Key Thing to Watch if Government Loses at SCOTUS in King v. Burwell

As the Supreme Court gets ready to decide this key Obamacare case, watch if Chief Justice Roberts or Justice Kennedy (f they make up a majority holding subsidies cannot apply to those in the federal exchange) engage in the total fiction that Congress can easily fix the Act. It is not going to happen, because congressional overrides of Supreme Court statutory decisions have fallen off a cliff, especially when it comes to contentious partisan issues (and fewer issues are more contentious these days than Obamacare). Pretending Congress will fix it is a Court that is willfully blind to modern political realities. (And on why the Court should take those realities into account in interpreting the Act, see this piece at Slate.)

In an LA Times oped on the case back in October, I wrote the following:

One argument [Chief Justice Roberts] might make in defense of that position is that Congress has the ability to go back and fix any unclear language through a revised statute.

Roberts telegraphed his willingness to take such an approach in the 2013 Shelby County vs. Holder case, which struck down a key provision of the Voting Rights Act. The provision the Supreme Court declared unconstitutional defined which states had to get federal approval (or pre-clearance) before making changes to their voting laws. Roberts’ opinion for the majority ordered the provision struck because it was based on old data. Congress, he reasoned, could simply update the formula to respond to “current conditions” if it wished to.

When Roberts wrote his Shelby County opinion, he knew full well that Congress would not update the coverage formula. Congress is polarized, and the issue was a political hot potato. Indeed, in the period since the opinion, a bill introduced to update the Voting Rights Act has gone nowhere. It is supported by Democrats and a sole Republican, Jim Sensenbrenner (R-Wis.).

Although Congress used to come forward on a bipartisan basis to change laws in response to Supreme Court rulings, the number of such overrides has fallen to a trickle. From 1975 to 1990, Congress overrode an average of 12 Supreme Court decisions in each two-year congressional cycle. In the last decade, that number has fallen to 2.7 every two years, and there have been no significant overrides during the Obama presidency since Republicans took over the House of Representatives. During the last two years, perhaps owing to the intensity of the current political polarization and paralysis, overrides have been even rarer. I have identified just one override, which pertained to a single Indian tribe’s right to certain tribal lands….

In today’s fraught political environment, court-Congress dialogues are not generally possible.  But that might not stop Roberts from citing the possibility of such a dialogue  — especially if what he is really seeking is political cover and a chance to redeem his controversial earlier ruling on the Affordable Care Act with a new one that hobbles a key part of the law.

 

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